Gage v. Springston Lumber Co.

• Decision Date: 04 May 1909
• Citation: 101 P. 501,53 Wash. 108
• Parties: GAGE v. SPRINGSTON LUMBER CO.
• Court: Washington Supreme Court

101 P. 501

53 Wash. 108

GAGE v. SPRINGSTON LUMBER CO.

Supreme Court of Washington

May 4, 1909

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Edgar Gage, by his guardian ad litem, against the Springston Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Danson & Williams and Peacock & Ludden, for appellant.

Robertson & Rosenhaupt, T. H. Wilson, and John C. Kleber, for respondent.

FULLERTON J.

This is an appeal by the defendant from a judgment for plaintiff entered in an action brought to recover damages for personal injuries. The cause was before this court on a former appeal and will be found reported in 47 Wash. 141, 91 P. 558. The second trial was had on the issues as originally framed which are clearly and lucidly stated in the former opinion.

The first error assigned is the refusal of the court to sustain the several challenges interposed to the sufficiency of the evidence. It is contended, first, that there was no evidence of negligence on the part of the defendant. The evidence is voluminous, and it would not be permissible to enter upon its review at length, but we find substantial evidence in the record on this point. The plaintiff's proofs tended to show that at the time of the accident he was but 15 years of age; that he was put to work on a cut-off saw both out of repair and of unsafe construction, and was not instructed as to the safe ways of operating the saw, nor warned of the increased hazards arising from its defective condition. With respect to an adult, who might be expected to see and know the hazards connected with operating a saw in the condition of this one, it might not be negligence to direct him to work therewith without warning him of the dangers he would encounter, but we cannot apply the rule to a youth of the age of this plaintiff. Whether the dangers were so open and obvious that one of his age and experience ought to have observed and avoided them was a question for the jury. The court cannot hold him accountable as a matter of law.

The contention that the accident was the result of the plaintiff's own negligence we think is equally without support in the record. The most that can be claimed on this point is that the evidence was conflicting. Nor do we think the defendant has succeeded in demonstrating that it is physically impossible for the accident to have happened if the plaintiff was, at the time of the injury, in the position he testified he was in. It will be remembered that the plaintiff operated a cut-off saw, fastened to a swinging frame, which allowed the saw to be pulled forward across the slab it was desired to cut. Fastened to the base on which it was hung was a heavy iron bar bent in the shape of a half circle, which the plaintiff used as a handle to pull the saw through the slab. He described the accident as happening when he was in front of the handle pulling the saw through a slab with his right hand; saying that, when he did so, the saw caught on the slab and suddenly jumped forward catching his arm and cutting it off at the elbow. The defendant argues that this statement cannot be true, because the handle of the saw, had he been in the position described, would have caught him on the breast and pushed him away from the saw out of danger. But clearly this is mere speculation. Had the handle struck him squarely it might have done so, but it would seem that, if he happened to be on one side of the center, the tendency would be to push him farther in that direction rather than directly backwards.

The court, among others, gave to the jury the following instructions:

'In this case it is claimed on behalf of the plaintiff that he is a minor, and was at the time of the happening of the accident of the age of 15 years. I instruct you that while a minor employé is held to have assumed the risk of the employment, yet it is only such risks as one of his age, discretion, and experience can be said to have comprehended, and he may recover for injuries resulting from dangers that by reason of youth,

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